September 19, 2017

Judge Blocks Shipment of Oil Equipment Through Idaho Forest

The review will be conducted by the United States Forest Service in consultation with the Nez Perce Indians, whose tribal rights and lands near the forest route were central to the judge’s ruling.

The case was brought by the Nez Perce tribe and an environmental group, Idaho Rivers United, charging that the Forest Service had failed to enforce its own rules and standards in protecting the forest and a river corridor through which a first shipment, known as a megaload and bound for Canada’s tar sands oil fields, was sent last month. A second shipment was scheduled for next week. The loads are more than 250 feet long and weigh about 644,000 pounds.

“The plaintiffs are not seeking damages; they are seeking to preserve their treaty rights along with cultural and intrinsic values that have no price tag,” Chief Judge B. Lynn Winmill of Federal District Court in Boise wrote in his preliminary injunction order, siding with the tribe.

Idaho Rivers United’s executive director, Bill Sedivy, said the implications for river protection could also echo far beyond Idaho. “River managers across the United States are watching this decision,” he said.

Leaders of the tribe were among the protesters arrested in early August for trying to block or delay the first equipment load as it headed for the boundary line of the four-million-acre Nez Perce-Clearwater National Forests. The route through the forest, in which the tribe still has treaty rights, is part of a federally protected Wild and Scenic Rivers corridor, a fact that was also cited by the judge in his order.

The equipment supplier, Resources Conservation Company International, an affiliate of General Electric, said in a statement that the injunction delayed delivery of machinery that could save billions of gallons a year in water, which is used in vast amounts in the type of oil recovery used at the tar sands. The company also said it was reviewing its options. “There are significant environmental benefits associated with these particular shipments,” the company said.

The Forest Service said in a statement that it was reviewing the decision and that it would comply with the order to ban further transports temporarily.

The equipment company said in court documents that shipment delays could cost the company millions of dollars. And with the road ordered closed pending the review, there is little incentive for tribal leaders to race through the process.

“It’s going to take whatever time is necessary,” said Michael Anthony Lopez, a lawyer for the tribe.

Article source: http://www.nytimes.com/2013/09/14/us/judge-blocks-shipment-of-oil-equipment-through-idaho-forest.html?partner=rss&emc=rss

Court Tells Reporter to Testify in Case of Leaked C.I.A. Data

In a 118-page set of opinions, two members of a three-judge panel for the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled that the First Amendment does not protect reporters who receive unauthorized leaks from being forced to testify against the people suspected of leaking to them. A district court judge who had ruled in Mr. Risen’s case had said that it did.

“Clearly, Risen’s direct, firsthand account of the criminal conduct indicted by the grand jury cannot be obtained by alternative means, as Risen is without dispute the only witness who can offer this critical testimony,” wrote Chief Judge William Byrd Traxler Jr., who was joined by Judge Albert Diaz in Friday’s ruling.

Mr. Risen has vowed to go to prison rather than testify about his sources and to carry any appeal as far as the Supreme Court. But some legal specialists said an appeal to the full appeals court was a likely first step. Mr. Risen referred a request to comment to his lawyer, Joel Kurtzberg, who wrote in an e-mail: “We are disappointed by and disagree with the court’s decision. We are currently evaluating our next steps.”

Judge Roger Gregory, the third member of the panel, filed a vigorous dissent, portraying his colleagues’ decision as “sad” and a serious threat to investigative journalism.

“Under the majority’s articulation of the reporter’s privilege, or lack thereof, absent a showing of bad faith by the government, a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial,” he wrote. “The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society.”

Friday’s ruling establishes a precedent that applies only to the Fourth Circuit, but that circuit includes Maryland and Virginia, where most national security agencies like the Pentagon and the Central Intelligence Agency are. As a result, if it stands, it could have a significant impact on investigative journalism about national security matters.

It has long been unclear whether the Constitution protects reporters from being forced to testify against their sources in criminal trials. The principal Supreme Court precedent in that area, which is more than 40 years old, concerns grand jury investigations, not trials, and many legal scholars consider its reasoning to be ambiguous.

“We agree with the decision,” said Peter Carr, a Justice Department spokesman. “We are examining the next steps in the prosecution of this case.”

The ruling was awkwardly timed for the Obama administration.

Attorney General Eric H. Holder Jr. has portrayed himself as trying to rebalance the department’s approach to leak investigations in response to the furor over its aggressive investigative tactics, like subpoenaing Associated Press reporters’ phone records and portraying a Fox News reporter as a criminal conspirator in order to obtain a warrant for his e-mails.

Last week, Mr. Holder announced new guidelines for leak investigations that significantly tightened the circumstances in which reporters’ records could be obtained. He also reiterated the Obama administration’s proposal to revive legislation to create a federal media shield law that in some cases would allow judges to quash subpoenas for reporters’ testimony, as many states have.

“It’s very disappointing that as we are making such good progress with the attorney general’s office and with Congress, in getting them to recognize the importance of a reporter’s privilege, the Fourth Circuit has taken such a big step backwards,” said Gregg Leslie, the legal defense director for the Reporters Committee for Freedom of the Press.

Mr. Risen is a national security reporter for The Times, but the case revolves around material he published in his 2006 book, “State of War,” not in the newspaper. A chapter in the book recounted efforts by the C.I.A. in the Clinton administration to trick Iranian scientists by having a Russian defector give them blueprints for a nuclear triggering device that had been altered with an error. The chapter portrays the operation as reckless and botched in a way that could have helped the Iranians gain accurate information.

Article source: http://www.nytimes.com/2013/07/20/us/in-major-ruling-court-orders-times-reporter-to-testify.html?partner=rss&emc=rss

DealBook: Judge Gonzalez, a Man Who Reshaped the Corporate Landscape

James Estrin/The New York TimesArthur J. Gonzalez, chief judge of the federal bankruptcy court in lower Manhattan, has overseen some of the biggest bankruptcy cases of recent years.

Many judges are lucky to handle just one era-defining case during their tenures on the bench. In his 16 years as a federal bankruptcy judge, Arthur J. Gonzalez has handled three.

The first, Enron, came up in late 2001. Eight months later, WorldCom followed, forcing the judge to handle both cases simultaneously. And the last, Chrysler, arrived in 2009.

Now, Judge Gonzalez, 64, is set to retire in March as the chief of the federal bankruptcy court in Manhattan. His career has been a vivid illustration of the important role that the court, located in a Beaux-Arts courthouse at the southern end of Manhattan, has played in helping reshape corporate America.

The Chrysler case proved in some ways to be the most difficult one of them all.

He recalled how he approved the sale of Chrysler’s core assets to Fiat of Italy just after 11 p.m. on June 1, 2009, after three days of marathon hearings and more than 300 objections. Almost immediately, however, Chrysler bondholders appealed, and within 10 days the matter rose to the Supreme Court.

“If you had asked me at the beginning of the case, I wouldn’t have thought it would have gone to the Supreme Court,” he said in an interview. “But this decision was important for the case to get done.”

After brief deliberations, the Supreme Court declined to hear the case, essentially reaffirming Judge Gonzalez’s decision.

On the bench, the judge has a quiet and subdued demeanor, keeping proceedings moving and rarely cracking jokes. Off the bench, however, his mood lightens considerably. During a conversation in his office, which has a dozen Hess toy trucks that he has collected over the years, he points fondly to the numerous pictures of his beloved Brooklyn Dodgers hanging on the wall.

Becoming a bankruptcy judge was not what Judge Gonzales, a Brooklyn native, had planned. After graduating from Fordham in 1969, Judge Gonzalez became a New York City schoolteacher, teaching in East New York. (A photo from 1973 in his office shows him with seven of his students from P.S. 189, sporting a thick mass of curly, dark hair.)

His interest in the law was stoked by his role as a representative for the United Federation of Teachers. After taking night classes at Fordham Law, Judge Gonzalez left teaching to take up a position at the Internal Revenue Service. After brief stints at two private firms, he joined the Justice Department’s trustee division, eventually being named to the bench in 1995.

Retirement, he says, should mean shorter work days than the 12 hours he now averages. (He arrives before 6 a.m. and generally leaves around 7 p.m. or 8 p.m.)

And it could leave more time to pursue his favorite pastime, running. He has run 30 of the last 32 New York City marathons, missing two because of injury.

Even now, he runs in triathlons and the annual 86-flight sprint up the Empire State Building. And he regularly runs with a fellow bankruptcy judge, Martin Glenn, who is overseeing MF Global’s Chapter 11 proceedings. Judge Gonzalez finished this year’s marathon at 4:45, far from the 3:26 he ran in 1980 but not exactly where he wants to be.

Judge Gonzalez said he was unlikely to take the well-worn route of former judges (and that of his daughter, a recent law school graduate) of joining a major law firm. Instead, he plans to continue teaching at New York University’s law school.

“If I decide I want to go home, I can go home,” he said. “I have control of my life.”

To those who argued before him, the judge has proved to be an efficient conductor of bankruptcy proceedings.

“He has a demeanor that exuded fairness, but was also very decisive and wrote brilliant decisions at a fairly rapid clip,” said Martin Bienenstock, who worked as Enron’s lead bankruptcy lawyer.

Of the three mammoth bankruptcy cases Judge Gonzalez handled, Enron was the first, filed over the weekend on Dec. 2, 2001. The judge came in early the next day, only to be told shortly afterward by a clerk that “the wheel,” the court system that assigns cases, had selected him to oversee the matter.

As Enron’s efforts to reorganize failed, quickly dissolving into an extensive liquidation, Judge Gonzalez’s time was consumed in grappling with a mounting investigation into accounting issues. The court allowed him to forgo new cases for six months.

“I think I spent the first six weeks of Enron on the bench every day,” he said.

In May 2002 Judge Gonzalez started accepting new cases again. Two months later, the wheel landed on him, impelling him to handle two of the country’s biggest bankruptcy cases at the same time.

“By the time WorldCom came in, I felt that yes, I could handle both at the same time,” he said. “Enron was not coming to me every day looking for relief.”

Though it was huge — WorldCom was the biggest Chapter 11 case on file until Lehman Brothers collapsed in September 2008 — Judge Gonzalez said that it was easier to manage. WorldCom successfully reorganized within 15 months, in October 2003, and Enron finally emerged from bankruptcy nine months afterward.

Still, the two cases produced reams of paperwork and required scores of opinions to be written, and Judge Gonzalez did not take on new matters for six years.

Then came Chrysler in May 2009. While Enron and WorldCom were the subject of numerous federal investigations, the carmaker posed its own challenge: politics. Bondholders had battled with the Obama administration over its plan to sell the bulk of Chrysler to Fiat, using the bankruptcy process to shed billions of dollars in debt owed to investors, dealers and accident victims.

Judge Gonzalez acknowledged that it was tough to ignore the cloud of politics surrounding the case, and knew that his decisions would be hotly contested by irate bondholders.

“It was a big political issue of whether the government should be involved,” he said. “But that wasn’t an issue before the bankruptcy court.”

Article source: http://dealbook.nytimes.com/2011/12/29/a-judge-who-reshaped-the-corporate-landscape/?partner=rss&emc=rss

Economix Blog: When Judges Break Their Own Rules

DESCRIPTION

I have a new article online about the ordeal that law students go through if they want to be hired as clerks for federal judges.

The recruiting process is competitive for both students and judges, who are all trying to leapfrog each other to snatch up the best talent before their peers do. That means judges are motivated to make job offers earlier and earlier, extending offers several years before a job’s actual start date, even before students have a full year of grades.

Alex Kozinski, the chief judge of the Ninth Circuit Court of Appeals, joked that he begins recruiting students “at birth.”

CATHERINE RAMPELL

CATHERINE RAMPELL

Dollars to doughnuts.

Meanwhile, students know about how early and how quickly the slots go, so they are always pressuring judges to give them the earliest interview slots possible, which effectively moves the entire system even earlier.

It’s basically a collective action problem, like curbing grade inflation (also a problem at law schools): Everybody individually would benefit from offering a position a little early, but when judges all do this at the same time they cancel out one anothers’ efforts. The problem can be solved only if everyone comes together and agrees to a system that forces everyone to do what no one would do unilaterally — that is, to wait to make job offers until a later date when everyone can make informed, thoughtful decisions.

And in the last three decades there have indeed been several attempts — by federal judges — to devise a rule system that is intended to essentially protect judges from themselves.

The problem is that there’s no external enforcement mechanism for this system. Judges have lifetime appointments, and breaking a clerkship recruiting rule doesn’t come with any sanctions the way breaking an N.C.A.A. recruiting rule does. So once one person starts cheating, there’s a strong temptation for others to cheat, too.

“It kind of goes in waves, like financial regulation,” said David Lat, a former clerk and now managing editor of Above The Law, a Web site on legal affairs that has followed the ebbs and flows of the clerkship hiring plan over the years. “The judges try to tighten up the process with some strict rules. In the early years people adhere to it, and then as time goes on fewer and fewer people follow it, since there’s more incentive to cheat, and the whole thing descends into chaos. Then there’s a renewed attempt to tighten things up, until it all descends into chaos all over again.”

Right now, we seem to be in the chaos part of the cycle.

It’s not clear that there’s a better design out there, though, that would fix the system and end the cycle. Any ideas?

Article source: http://feeds.nytimes.com/click.phdo?i=695060394e3debd983a321998ec66bd9